The Supreme Court turned down an appeal from Pennsylvania’s Republican leaders on October 19 and left in place a ruling that says late-arriving mail ballots will be counted as long as they were mailed by election day. The justices were split 4-4, with four conservatives on one side, and Chief Justice John Roberts joining liberals on the other. Both of President Donald Trump’s appointees, Neil Gorsuch and Brett Kavanaugh, sided with the Pennsylvania Republican party and felt that it was justified for the Supreme Court to hear their argument. The decision has the effect of upholding a state supreme court ruling that allowed for counting mail ballots that arrive up to three days after November 3 as long as they are postmarked or mailed by election day. Pennsylvania is a battleground state, crucial to both President Donald Trump and former Vice President Joe Biden. Election officials anticipate the outcome there may turn on the nearly 3 million ballots that are likely to be sent by mail. The October 19 decision is a victory for Democrats and voting rights advocates. They feared postal delays could result in mail ballots arriving after election day. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh said they would have granted the appeals filed by Republican leaders in the state legislature and the Pennsylvania Republican Party, which said mail ballots should not be counted unless they arrived by election day. It takes a majority to issue such an order, and with the death of Justice Ruth Bader Ginsburg last month, the court now has just eight justices.
Last year, the Pennsylvania legislature agreed to allow all of its registered voters to cast a ballot by mail but also said these ballots must arrive by election day if they are to be counted. But the county election boards struggled in June when the pandemic prompted more than 1 million in Pennsylvania to switch to a mail-in ballot. With the November election looming, the state supreme court agreed in September to rule on several disputes that arose from competing lawsuits. By a 4-3 vote, the state justices agreed to “adopt” the recommendation of Secretary of State Kathy Boockvar and extend the deadline for three days to allow for counting mail ballots that were posted by election day but arrived by November 6. The state judges cited a warning from a US Postal Service lawyer who said there was a “significant risk” that ballots mailed at the end of October would not arrive in a county office by November 3. They also noted that late-arriving ballots from overseas military personnel are counted so long as they are postmarked by election day.
The state ruling was not a total victory for voting rights advocates, however. The state high court upheld a strict rule against counting a mail ballot that does not arrive inside a secured safety envelope. Republican leaders of the state legislature and the Republican Party of Pennsylvania filed separate emergency appeals with the Supreme Court, urging the justices to overrule the state high court on the issue of the late-arriving mail ballots. They said the extended deadline would invite fraud. “This is an open invitation to voters to cast their ballots after election day, thereby injecting chaos and the potential for gamesmanship into what was an orderly and secure schedule of a clear, bright-line deadline,” they wrote in Scarnati vs. Pennsylvania Democratic Party. The two sides presented sharply different views of the law. Pennsylvania’s attorney general argued the state supreme court had ruled on a matter of state election law, which he said should be off-limits to the US justices in Washington. The state Republican leaders insisted that the national election day is set in federal law, and the Constitution gives the state legislature, not its courts, the authority to set the rules for a presidential election.
Overall, the Supreme Court ruling on Pennsylvania’s ballot-counting procedures represents an ominous sign regarding post-election legal challenges by President Donald Trump’s campaign. While Chief Justice John Roberts, regarded as a moderate conservative, sided with the court’s three more liberal members, both of President Trump’s appointees, Neil Gorsuch and Brett Kavanaugh, argued that it was justified to strike down Pennsylvania’s mail-in ballot procedures. This seems to show that they will be likely to side with Trump in any election disputes. Coupled with Justice Amy Coney Barrett’s expected support for post-election challenges, it is likely that the Supreme Court may hand Donald Trump a second term even in the case of an overwhelming victory by Joe Biden.